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Meal and Rest Breaks

A work shift can be a hectic part of the day with task after task needing to be taken care of. Despite the busyness of the workday, California wage and hour laws provide that most employees should be taking rest and meal breaks throughout their shift if they work a certain number of hours. In fact, rest and meal breaks are considered so important that they can only be waived if certain requirements are met.

If you believe that you are not given proper rest and meal breaks, and you would like to consult with an attorney contact Abogato and find out how we can help.

WHAT IS A REST BREAK?

A Rest Break is a paid 10-minute period during which you (a non-exempt employee) are allowed to be away from your workstation and not required to work.

The 10-minute period should be continuous. For example, a Rest Break should not be two separate 5-minute breaks or five separate 2-minute breaks.

Rest Breaks should generally not include the time it takes to travel to and from the place of rest, such as a break room or patio.

Trips to the restroom should generally not be counted as a Rest Break.

HOW MANY REST BREAKS AM I ALLOWED TO TAKE?

In general, you must have a paid 10-minute Rest Break for every 4 hours of work, “or major fraction thereof.” For example,

A 3.5 hour to 6 hour work shift requires a 10-minute Rest Break;

A work shift of more than 6 hours and up to 10 hours requires two 10-minute breaks; and

A work shift of more than 10 hours and up to 14 hours requires three 10-minute breaks.

Your employer does not need to provide you a 10-minute Rest Break if your shift is less than 3.5 hours.

WHAT IF MY EMPLOYER DOESN’T ALLOW ME TO TAKE REST BREAKS?

Your employer is not required to monitor and make sure that you take your Rest Break. Your employer must simply tell you that you have permission to take your Rest Break and should not discourage you in any way from taking the break, no matter how busy your work is.

If your employer does not allow you to take a Rest Break, then you should be paid for an extra hour of work on your next paycheck. This is called “premium pay.”

WHAT IS A MEAL BREAK?

There are two types of meal breaks: 1) “off-duty” and 2) “on-duty.” When talking about a Meal Break, we are usually referring to an “off-duty” meal break, but be aware that “on-duty” meal breaks exist too.

A Meal Break is a period of 30-minutes or more during which your employer must do all of the following:

Relieve you from all of your duties;

Give up control over your activities;

Permit you a reasonable opportunity to take an uninterrupted 30-minute break; and

Not interfere with or discourage you from taking you Meal Break.

A Meal Break should occur at some point before the end of a 5 hour work shift. If a work shift is 10 hours or longer, then a second meal break should occur at some point after the first 5 hours of work but before the end of the 10 hours of work.

IS A MEAL BREAK PAID?

Generally, your employer does not have to pay you during your Meal Break. You may leave the work site during your Meal Break. If you are required to remain at your work site, then your Meal Break must be paid.

HOW MANY MEAL BREAKS AM I ALLOWED TO TAKE?

Your employer must provide you with a Meal Break if your work shift is more than 5 hours.

If you work shift is less than 6 hours, your Meal Break may be waived if both you and your employer agree.

Your employer must provide you a second Meal Break if your work shift is more than 10 hours.

If your work shift is less than 12 hours, you can waive you second Meal Break if you and your employer agree.

WHAT IF I’M NOT ALLOWED TO TAKE MY MEAL BREAKS?

Your employer must make sure that you are not required, or even encouraged, to do any work during your Meal Break. Essentially, a Meal Break should be similar to not being at work at all.

If you’re not allowed a Meal Break, then you should be paid for an extra hour of work on your next paycheck. This extra hour of pay is called “premium pay.”

DO ALL WORKERS HAVE A RIGHT TO REST BREAKS AND MEAL BREAKS?

Most California workers have the right to Rest Breaks and “off-duty” Meal Breaks but there are exceptions. For example, if the “nature of the job” requires that you continue to work during your Meal Break, then you can continue to work but you must agree to do so in writing. Other requirements must be met as well. This exception is narrow and does not apply to most employees in California.

MY EMPLOYER IS NOT ALLOWING ME TO TAKE MY REST BREAKS OR MEAL BREAKS. WHAT CAN I DO?

If you are not being allowed to take your Rest Breaks or Meal Breaks, and you are not receiving “premium pay,” then you may be able to file a claim or lawsuit against your employer and seek reimbursement. Contact Abogato and speak with one of our attorneys to find out how we can help.

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